24 F.

3d 440

Abdur RAHIM, Ruhol Quddus Sarkar, Abdul M. Bhuiyan,

Sunther
Kandaswamy, MD Yusef Ali, Faruque Ahmed, Salah
Abdelfattah,
Gulam Mohammed Choudhury, Karnail Singh, Mohammed
Salimul
Alam, Mohammed Omer Mirdha, Abdul MD Wadud,
Mohammed Azam
Choudhury, Chhotobhai Patel, Johangir Sheikh Ali, Mahbub
Ahmed, Khalid Hameed, Syed Solaiman, Jashim Ahmed, Abdul
Basher M. Faizullah, Molla Momin, MD Nural Hussain, Nirad
Barua, Mustafa Ahmed, Mohammad Akbar, Hassan
Abdelghany
Mohammed, Roshan Lal Pathak, Plaintiffs-Appellants,
v.
Gene McNARY, Commissioner, Immigration & Naturalization
Service, Immigration & Naturalization Service, Terrance
O'Reilly, Director, Immigration & Naturalization Service,
Administrative Appeals Unit, Joseph Cudihy, Chief,
Immigration & Naturalization Service, Administrative Appeals
Unit, Immigration & Naturalization Service, Administrative
Appeals Unit, Immigration & Naturalization Service,
Legalization Appeals Unit, Andrea Quarantillo, Director,
Immigration & Naturalization Service, Legalization Appeals
Unit, Defendants-Appellees.
No. 1017, Docket 93-2592.

United States Court of Appeals,

Second Circuit.
Argued Jan. 25, 1994.
Decided May 17, 1994.

Charles A. Grutman, New York City, for plaintiffs-appellants.

Diogenes P. Kekatos, Asst. U.S. Atty., S.D.N.Y. (Mary Jo White, U.S.
Atty. for the S.D.N.Y., Gabriel W. Gorenstein, Asst. U.S. Atty., S.D.N.Y.,
of counsel), for defendants-appellees.
Before: WALKER and JACOBS, Circuit Judges, and DALY, District
Judge.*
PER CURIAM:

Appellants, twenty-seven undocumented aliens denied temporary resident

status under the Special Agricultural Worker ("SAW") provisions of the
Immigration Reform and Control Act of 1986 ("IRCA"), challenge two
regulations of the Immigration and Naturalization Service ("INS") which
preclude applicants from filing motions to reopen a proceeding or reconsider an
INS decision. See 8 C.F.R. Secs. 103.5(b), 210.2(g) (1993). They now appeal a
decision of the United States District Court for the Southern District of New
York (Sand, J.) dismissing their consolidated complaints for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), 827 F.Supp. 224. We
affirm.

BACKGROUND
2

An alien seeking lawful temporary status as a SAW must file an application and
supporting documents with an INS Legalization Office ("LO"). The INS issues
a temporary employment authorization to the applicant pending a determination
on the SAW application. The applicant then is interviewed by an INS examiner
at the appropriate LO. The application must establish, by a preponderance of
the evidence, that the applicant performed the requisite ninety days of
qualifying seasonal agricultural services. To meet this burden the applicant
must present evidence of eligibility independent of his or her own testimony,
such as an employer's payroll records or affidavits by agricultural producers,
foremen, farm labor contractors, union officials, fellow employees, or other
persons with specific knowledge of the applicant's employment.

At the conclusion of the review of the application materials the INS examiner
makes an initial recommendation to the Regional Processing Facility ("RPF").
If the examiner recommends approval and the RPF concurs in this
determination, the RPF notifies the applicant of the approval. If the examiner

recommends denial of the application and the RPF agrees, however, the RPF
sends to the applicant a notice of intent to deny. The applicant then is given an
opportunity to submit to the RPF any further evidence to rebut that
determination. If the RPF does not overrule the denial, the applicant is notified
of the denial and of his or her right to appeal the determination to the
Legalization Appeals Unit ("LAU"), which is authorized to make the final
administrative decision in each case. Although the LAU bases its review upon
the administrative record developed at the time of the initial decision on the
application, the applicant may submit for the LAU's consideration any
additional or newly discovered evidence that was not available at the time of
the initial determination by the INS examiner. If the LAU determines that the
denial decision was correctly made, it then issues a final order of denial. If,
however, the LAU determines that the denial was incorrect, it remands the
matter to the RPF for further hearings.
4

INS regulations preclude applicants from filing before the LAU motions to
reopen a previous proceeding or to reconsider a previous decision. See 8 C.F.R.
Secs. 103.5(b), 210.2(g) (1993).1 The appellants assert that these regulations
are an impermissible interpretation of section 1160(e) of IRCA because they
limit the introduction of evidence of eligibility and hence limit the scope of
appellate review of a denial of eligibility.2

The district court properly exercised subject matter jurisdiction over the
consolidated complaints on the ground that IRCA's limitation on judicial
review does not preclude review of a challenge to the procedures used by the
INS in implementing the statute. See McNary v. Haitian Refugee Ctr., Inc., 498
U.S. 479, 491-94, 111 S.Ct. 888, 895-97, 112 L.Ed.2d 1005 (1991). This
determination is not challenged on appeal. The district court then rejected
appellants' claim that the regulations were arbitrary and capricious. This appeal
followed.

DISCUSSION
6

A court's review of an agency's construction of a statute begins with a

determination of whether Congress has addressed the question at issue. If
Congressional intent is clear, both the court and the agency must give effect to
that intent. Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072-73 (2d Cir.1993). If
Congress has not addressed the question explicitly, the court must consider not
how it would interpret the statute, but whether the agency's interpretation "is
based on a permissible construction of the statute." Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778,
2782, 81 L.Ed.2d 694 (1984). The authority of an agency to administer a

congressionally created program necessarily requires the formulation of

policies, procedures and regulations to fill any gap left by Congress. Id. at 84344, 104 S.Ct. at 2782. If an explicit statutory gap exists, it constitutes an
express delegation of authority to the agency "to elucidate a specific provision
of the statute by regulation. Such legislative regulations are given controlling
weight unless they are arbitrary, capricious, or manifestly contrary to the
statute." Id. at 844, 104 S.Ct. at 2782.
7

The appellants assert that Congress intended to give SAW applicants every
opportunity to establish eligibility, and claim that the opportunity to file
motions to reopen is consistent with that intent. Although IRCA is silent
regarding motions to reopen, the language of the Act is consonant with
regulations precluding such motions. Section 1160(e)(2)(A) provides only "for
a single level of administrative appellate review" of a determination on a SAW
application. 8 U.S.C. Sec. 1160(e)(2)(A) (1993). Pursuant to this requirement,
Congress explicitly directed the Attorney General to establish the LAU to hear
administrative appeals of denials of SAW applications. See id. IRCA also
forecloses judicial review of a final order by the LAU absent an order of
exclusion or deportation. See 8 U.S.C. Sec. 1160(e)(3)(A); see also McNary,
498 U.S. at 491-94, 111 S.Ct. at 895-97. Further, IRCA directs that, when
undertaken, judicial review must be based solely upon "the administrative
record established at the time of the review by the appellate authority." 8
U.S.C. Sec. 1160(e)(3)(B) (1993). Finally, the factual findings and the
determination contained in the record are "conclusive" unless the applicant can
demonstrate either an abuse of discretion or a determination "directly contrary
to clear and convincing facts contained in the record considered as a whole." Id.

This statutory language expresses an intent to create a procedure wherein all

available evidence would be submitted before the LO or the RPF in the first
instance. Even section 1160(e)(2)(B), which provides that new evidence may
be presented during the administrative appeal of a denial to the LAU, limits
such evidence to that which is either newly discovered or not available at the
time of the lower level determinations. 8 U.S.C. Sec. 1160(e)(2)(B) (1993).
Apart from these two exceptions Congress did not envision further
development of the record by an applicant beyond the time of the review by the
appellate authority, via a motion to reopen or any other method.3 The
appellants' claim that Congress envisioned a broad and liberal procedure for
review of SAW applications therefore is not supported by either the provisions
limiting review to a single level or the restrictions on subsequent presentation
of evidence. Indeed, the challenged regulations are entirely consistent with the
Congressional intent underlying IRCA. Accordingly, we find that the
challenged regulations constitute a "permissible construction of the statute." See

Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82.

The appellants also claim that regulations permitting the INS to determine their
eligibility without considering all the evidence violates their due process rights.
This claim is without merit, however, as the record indicates that the appellants
possessed three opportunities to submit evidence to establish their eligibility--to
the LO, the RPF and the LAU. The appellants were given a full and fair
opportunity to establish their eligibility and thus were not denied their due
process rights. See Bothyo v. Moyer, 772 F.2d 353, 358 (7th Cir.1985).
Accordingly, relief based on this claim also is unavailable.

CONCLUSION
10

For the reasons stated above, the district court's order dismissing the appellants'
consolidated complaints is affirmed.

Honorable T.F. Gilroy Daly of the United States District Court for the District
of Connecticut, sitting by designation

Section 103.5(b) provides in pertinent part:

Upon the filing of an appeal ... the Director of a Regional Processing Facility ...
may sua sponte reopen any proceeding under his or her jurisdiction opened
under part 210 or 245a of this chapter and may reconsider any decision
rendered in such proceeding.... The Associate Commissioner, Examinations, or
the Chief of the Administrative Appeals Unit may sua sponte reopen any
proceeding conducted by that unit under part 210 or 245a of this chapter and
reconsider any decision rendered in such proceeding.... Motions to reopen a
proceeding or reconsider a decision under part 210 or 245a of this chapter shall
not be considered.

C.F.R. Sec. 103.5(b) (1993). Section 210.2(g) similarly provides:

In accordance with the provisions of Sec. 103.5(b) of this chapter, the director
of a regional processing facility ... may sua sponte reopen any proceeding under
this part under his or her jurisdiction and reverse any adverse decision in such
proceeding when appeal is taken ... from such adverse decision; the Associate
Commissioner, Examinations, and the Chief of the Administrative Appeals
Unit may sua sponte reopen any proceeding conducted by that unit under this
part and reconsider any decision rendered in such proceeding.... Motions to
reopen a proceeding or reconsider a decision shall not be considered under this

part.
8

C.F.R. Sec. 210.2(9) (1993)

The relevant portion of IRCA, codified at 8 U.S.C. Sec. 1160(e) (1993),

provides as follows:
(1) Administrative and judicial review
There shall be no administrative or judicial review of a determination
respecting an application for adjustment of status under this section except in
accordance with this subsection.
(2) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a
single level of administrative appellate review of such a determination.
(B) Standard for review
Such administrative appellate review shall be based solely upon the
administrative record established at the time of the determination on the
application and upon such additional or newly discovered evidence as may not
have been available at the time of the determination.
(3) Judicial review
(A) Limitation to review of exclusion or deportation
There shall be judicial review of such a denial only in the judicial review of an
order of exclusion or deportation under section 1105a of this title.
(B) Standard for judicial review
Such judicial review shall be based solely upon the administrative record
established at the time of the review by the appellate authority and the findings
of fact and determinations contained in such record shall be conclusive unless
the applicant can establish abuse of discretion or that the findings are directly
contrary to clear and convincing facts contained in the record considered as a
whole.
8 U.S.C. Sec. 1160(e) (1993).

IRCA does not preclude the INS from reopening proceedings sua sponte. See 8
C.F.R. Secs. 103.5(b), 210.2(g)